Freeman v. Freeman

• Decision Date: 09 March 1921
• Parties: FREEMAN v. FREEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 150

130 N.E. 220

FREEMAN

v.FREEMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 9, 1921.

Exceptions from Superior Court, Suffolk County; Frederick W. Fosdick, Judge.

Suit for divorce by Margaret Reed Freeman against Ernest B. Freeman, resulting in decree nisi, with custody of children, and libellee excepts. Exceptions overruled.Gaston, Snow, Saltonstall & Hunt, Horatio Alden, and Thomas Hunt, all of Boston, for libellee.

Damon E. Hall and F. Delano Putnam, both of Boston (Hurlburt, Jones & Hall and Ropes, Gray, Boyden & Perkins, all of Boston, of counsel), for libellant.

BRALEY, J.

The exceptions recite that the parties were married January 14, 1903, and thereafter lived together in this commonwealth until July 31, 1919, when ‘the libellant left the libellee for good,’ and on August 23, 1919, brought a libel for divorce charging her husband with cruel and abusive treatment, and asking for the care and custody of the four surviving minor children born of the marriage. A decree nisi having been ordered with custody of the children, the case is before us on exceptions of the libellee to the refusal of the judge to rule that the evidence did not warrant a decree, or a finding that the libellant had been subjected to cruel and abusive treatment as alleged in the libel and specifications, and that upon the undisputed evidence her own conduct had been such as to prevent her from obtaining a divorce, and to the admission and exclusion of evidence. The sufficiency of the proof is immaterial. If there was any evidence which as matter of law warranted a decree, the rulings requested could not have been given, and the exceptions to the findings cannot be sustained. The statute among other causes provides that a divorce may be decreed for cruel and abusive treatment. R. L. c. 152, § 1. It was held in Bailey v. Bailey, 97 Mass. 373, where the libel alleged that the libellee had ‘treated the libellant with extreme cruelty, and bruised and beat the person of the libellant in such a manner as to endanger her life, and threatened to take her life,’ that cruelty as a ground for divorce must be of such a character ‘as shall cause injury to life, limb or health, or create a danger of such injury or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to wound the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’ See Ford v. Ford, 104 Mass. 198;Freeborn v. Freeborn, 168 Mass. 50, 52, 46 N. E. 428. The distinction between cruel and abusive treatment and extreme cruelty, also a ground for divorce under Gen. Sts. c. 107, § 9, Pub. Sts. c. 146, § 1, but omitted from R. L. c. 152, § 1, is pointed out in Lyster v. Lyster, 111 Mass. 327, 328, 329,Jefferson v. Jefferson, 168 Mass. 456, 47 N. E. 123, and Osborn v. Osborn, 174 Mass. 399, 400, 54 N. E. 868.

The judge's findings on which he granted a divorce having been confined to the acts and conduct of the libellee during the period from January 1 to July 31, 1919, it is unnecessary to consider specifically prior allegations of his marital wrongdoing, or to dwell on his admissions of being often angered and slapping her, or on evidence which if believed showed that he had struck her many times, once with clinched fist, and once by a blow so violent as to cause her nose to bleed, and that after knocking her down in the dining room he dragged her into the living room and threw her against a bookcase. The testimony of the libellant corroborated by the evidence of her sister and of her own daughters was sufficient to show that the libellee when she was suffering from ill health frequently had assaulted her, and during some of the assaults indulged in foul, abusive and profane language. It also could be found that on July 31, 1919, in the presence of her daughters, and of her sister and brother-in-law, he assaulted, and accused her of being an immoral, diseased woman and a liar, causing her to suffer in health, and confining her in bed during the following day. The evidence in the record without further recitals justified the judge in finding that the libellee was guilty of cruel and abusive treatment to the extent of inflicting injuries upon her person by violence, which never have been condoned. The rulings requested on this issue in so far as not given were rightly refused. Lyster v. Lyster, 111 Mass. 327; Bailey v. Bailey, supra; Freeborn v. Freeborn, 168 Mass. 50, 52, 46 N. E. 428;Jefferson v. Jefferson, 168 Mass. 456, 460, 47 N. E. 123;Osborn v. Osborn, 174 Mass. 399, 54 N. E. 868. And the general finding that the libellee ‘inflicted upon the libellant cruel and abusive treatment within the meaning of R. L. c. 152, § 1,’ and the order for a decree ‘on the ground of cruel and abusive treatment as found by me,’ having been warranted, is conclusive. Dickinson v. Dickinson, 167 Mass. 474, 45 N. E. 1091. The defenses pleaded in the answer of adultery, and of justification and excuse arising from alleged misconduct of the libellant, more fully appearing in the specifications, depended upon the evidence, and the judge having expressly found that the libellant had always been faithful to her marital vows and obligations, he correctly declined to rule, that her own conduct furnished any justification for the libellee's acts, or barred a divorce. Lyster v. Lyster, 111 Mass. 327;Pollock v. Pollock, 71 N. Y. 137. See Cushman v. Cushman, 194 Mass. 38, 79 N. E. 809;Newman v. Newman, 211 Mass. 508, 98 N. E. 507, Ann. Cas. 1913B, 672. The general finding, moreover, for the libellant, is a finding that, in so far as the defense depended upon issues of fact, the libellee had failed in his contentions. Boston Supply Co. v. Rubin, 214 Mass. 217, 220, 101 N. E. 133.

[3][5] We perceive no reversible error in the rulings relating to evidence. The libellant was properly permitted to testify in her direct and redirect examination that she refrained from engaging in certain social affairs, and from associating with certain persons or with neighbors in consequence of conversations with her husband. Sampson v. Sampson, 223 Mass. 451, 458, 112 N. E. 84. And it is unnecessary to decide whether in his attempt to show misconduct, the libellee having substantially introduced through her cross-examination every instance of his remonstrances, he has shown that he has been prejudiced. See Morrison v. Lawrence, 186 Mass. 456, 458, 72 N. E. 91. The admission of a conversation between the spouses in the presence of the daughters, the eldest being nine years old, shows no ground of exception. It was for the judge to determine whether she was of sufficient intelligence at the time to pay attention...